2011 (1) TMI 649 - AT - Service Tax

Penalty u/s 76 - Service provided outside India i.e. in Nepal - Business auxiliary services - Export of service Rules, 2005 provides for exemption of service exported subject to the condition that the, payment for such service is received by the service provider in convertible foreign exchange - Hence, the assessee agrees that the payment has been received in Indian currency - prima facie state, we are of view that the applicant has not been able to make out a good case so as to dispense with pre-deposit of the entire dues - Decided against the assessee.

Summary

Issues:
Service tax liability on services provided to a client located outside India. Application of Export of Services Rules, 2005 for exemption. Pre-deposit of service tax and penalty.

Service Tax Liability on Services Provided to a Client Located Outside India:
The judgment deals with the confirmation of service tax against the applicant for providing business auxiliary services to a client in Nepal. The applicant received a commission for finding customers for their Nepalese client. The contention raised was that since the service was provided outside India and payments were received from Nepal, no service tax should be payable. The applicant relied on a Tribunal judgment stating that services provided to a recipient located abroad should not be considered as delivered in India. However, the Commissioner (Appeals) found that the services were provided from Indian territory and, therefore, the provisions of the Service Tax Act were applicable. The Commissioner noted that to avail the exemption under the Export of Services Rules, 2005, payment should be received in convertible foreign exchange, which was not the case here as the payment was received in Indian currency. Consequently, the applicant was not eligible for the exemption from service tax.

Application of Export of Services Rules, 2005 for Exemption:
The Tribunal examined the Export of Services Rules, 2005, which provide for an exemption of service tax on exported services subject to certain conditions, including receiving payment in convertible foreign exchange. The applicant admitted that payment was received in Indian currency, which did not fulfill the condition for exemption. Therefore, the Tribunal concluded that the applicant had not made a sufficient case to dispense with the pre-deposit of the entire service tax amount. The Tribunal noted that the quantum of service tax to be deposited was on the lower side and would not cause financial difficulty to the applicant. Accordingly, the Tribunal directed the applicant to deposit the entire service tax amount within four weeks, with the pre-deposit of penalty being dispensed with subject to compliance. The matter was scheduled to come up for verifying compliance on a specific date.

Pre-Deposit of Service Tax and Penalty:
The judgment required the applicant to deposit the entire service tax amount within a specified timeframe. However, the pre-deposit of the penalty was dispensed with subject to compliance with the deposit requirement. This decision aimed to ensure that the applicant fulfilled their financial obligations while providing an opportunity to avoid the pre-deposit of the penalty based on compliance with the service tax deposit directive.

This detailed analysis of the judgment highlights the issues of service tax liability on services provided to a client outside India, the application of the Export of Services Rules, 2005 for exemption, and the requirement for pre-deposit of service tax and penalty. The judgment underscores the importance of complying with tax regulations and conditions for availing exemptions under relevant rules and acts.